The Philippines just presented its arguments before the Permanent Court of Arbitration on the South China Sea controversy in the Hague, Netherlands starting last 7 July 2013 and again last 13 July 2013. While China did not officially participate, it published a position paper and several academics wrote in academic journals presenting the arguments of China. One such article is by Zou Keyuan and Liu Xinchang, appearing in the 14 Chinese Journal of International Law (2015, doi : 10.1093/chinesejil/jmv008) . We examine the legal arguments presented by this article and comment on them whether they have some worth or not. Of course, this is done by an ordinary practising lawyer in the Philippines familiar with international law but without any formal training or experience in international tribunal litigation.

The U-shaped line is based on “sovereignty+UNCLOS+historic rights”

Zou and Liu cite Wu Shicun, President of the National Institute for South China Sea Studies, for presenting this argument. According to Wu Shicun, the U-shaped line (or the 9-dash line, for that matter) is based on the theory of “sovereignty+UNCLOS+historic rights”. According to this theory, China enjoys sovereignty over all the features within this line, and enjoys sovereign right and jurisdiction, deﬁned by the Law of the Sea (LOS) Convention, for instance, EEZ and continental shelf when certain features fulﬁl the legal deﬁnition of Island Regime under Article 121 of the LOS Convention. In addition to that, China enjoys certain historic rights within this line, such as ﬁshing rights, navigation rights and priority rights of resource development.

We can examine this argument by looking at its three constituent parts, namely, sovereignty, UNCLOS and historic rights.

On Sovereignty

According to Brownlie’s Principles of International Law (2012), sovereignty denotes the legal competence which a state enjoys in respect of its territory. This legal competence is a consequence of title and by no means coterminous with it. What this explanation means is that for a state to have sovereignty over a certain territory, one has to look closely also as to how such sovereignty, or title over such territory, has been acquired. The manner of acquisition or modes of acquiring territorial sovereignty may either be by original and historic title, effective occupation, cession and adjudication.

From this explanation of what sovereignty is, Zou and Liu did not fully explain how sovereign rights or title was acquired by China according to the various modes of acquiring territorial sovereignty, save for quoting merely that there is already such sovereign rights according to one Chinese official that they quoted, namely, Wu Shicun.

On UNCLOS (United Nations Convention on the Law of the Sea)

Article 121 of UNCLOS cited by Zou and Liu refers to what is called a “regime of islands”, which reads :

1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.

2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.

3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

What the authors point out is that the islands inside the 9-dash line form a regime of islands that correspond to para. 2 of article 121 of UNCLOS, meaning, these islands are naturally formed and are surrounded by water and is above water at high time. As such islands, then it would be capable of determining the contiguous zone, the exclusive economic zone and the continental shelf of these islands.

It is clear, however that some of these islands are uninhabitable as most of the inhabitants there now, including the Filipinos, depend on outside support, for sustenance. China would be hard-pressed to present clear evidence that these are islands within the contemplation of this UNCLOS provision.

On historic rights

The authors also point out that the 9-dash line generate historic rights which are allowed in general international law. They also state that China’s historic entitlement is consistent with general international law and has been recognized, at least implicitly, by the international community for more than 60 years.

They admit though that the burden of proof lies on the Chinese side, to demonstrate the existence of such historic rights and entitlement so as to further consolidate its claims and convince the international community. For the burden of proof, China may be able to argue that since ancient times, China has been continuously exercising its legitimate rights and authority in the South China Sea, in particular the use of marine resources, construction of artiﬁcial structures and installations, marine scientiﬁc research, maritime law enforcement, navigation, and military uses.

One thing, however, with all these latter-day uses of the islands in the South China Sea is that they are mainly recent and thus, there is nothing historic about these activities.